Seru v The State [1996] FJHC 27; Haa0024j.96s (10 July 1996)

Fiji Islands - Waisale Seru v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CRIMINAL L NO. 0024 OF 1996

BETWEEN:

WAISALE SERU
Appellant

AND:

THE STATan>
Respondent

Appellant in Person
Mr. W. Clarke for Respondentn>

JUDGMENT

This is an appeal against a sentence of 8 months imprisonment imposed by thean> Magistrate Court, Nausori on the 5th of February 1996 after the appellant pleaded 'guilty' to offences of Criminal Trespass and Assault Occasioning Actual Bodily Harm.

The appellant had been jointly charged wive (5) others on both offences and had admitted the facts acts outlined by the police prosecutor, as follows:

In mitigation, the appellant who was the fifth accuse the eldest in the group, merely said:

"24 years old ... seek leniency."

The trial magistrate in sentencing the appellant, quite properly observed that the offence was 'serious' and 'cowardly', involving a gang attack on a hapless young man who was alleged to be having an affair with a girl from the accuseds village. The trial magistrate also noted the prevalence of such attacks and said: "I am seriously of the view that deterrent custodial sentence, though short, is warranted."

The trial magistrate then proceeded to "... see each accused (1-5) to 8 months imprisonment." In doing so he appears to have completely overlooked the 'first count' of Criminal Trespass in respect of which the accuseds had earlier pleaded 'guilty'. Indeed his sentencing remarks appear to have been directed solely at the more serious offence of Assault Occasioning.

In the result (assuming that convictions had been properly entered), no sentence has been imposed in respect of the 'first count' of Criminal Trespass in clear breach of the mandatory requirements of Section 206(2) of the Criminal Procedure Code (Cap.21); nor in my view, is it clearly recorded that the sentence was imposed in respect of the 'second count' of Assault Occasioning as is required in terms of Sections 155(1) and (2) of the Criminal Procedure Code (Cap.21) ('CPC').

At the hearing of the appeal State Counsel valy supported the trial Magistrate's sentence by submitting ting that a sentence of 8 months for a trespass involving an assault is not harsh.

I am satisfied however that the 'irregularity' is so fundamental that the trial magistrate's sentence cannot be allowed to remain in its present state of uncertainty.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In David Kio v. R. 13 F.L.R. 21 an appeal from the Solomon Islands, the Fiji Court of Appeal in considering the Solomon equivalent of our Section 155(2) of the 'C.P.C.' said at p.22:

"Although no particular form of words is required it would apphat the judgment must make make it clear that the accused person is convicted, must specify the offence of which he is convicted, and the punishment to which he is sentenced."

(my underlining)

Furthermore the Court of Appb> cited with approval the following passage from Jean Charles Confiance v. R.. (1960) E.A.567 where Gould Ag. V.P. delivering the judgment of the Court of Appeal of East Africa said at p.571:

"... it is axiomatic that there must be a judgment in a criminal trial, it alit also follows that certain requirements must be regarded as basic, as non-compliance with them would result in there being no judgment at all."

and later atp.572:

"... in a case where a court has decided that an accused person is guilty, the basic elements of the judgment are the conviction and sentence."

(my underlining)

A fortiori where the charge is comprised of more more than one Count.

In lighthe foregoing there is no doubt in my mind that the absence of a clear and unequivocal 'conviction and sentence' in respect of each count in the charge is, to adopt the language of the Court of Appeal in David Kio's case (ibid at p.24): "... a basic defect and one which is not curable by this Court."

The appeal is accordingly allowed and the trial magistrate's conviction and sentence is hereby quashed and set aside. What then should be done in the circumstances? After careful consideration and mindful that the appellant has already served over three (3) weeks of his sentence before he was released on bail pending appeal, I do not consider this an appropriate case to order a 'trial de novo'.

D.V. Fatiaki
JUDGE

At Suva 10th July, 1996.

Haa0024j.96s